Descriptive fair use and "use in a trademark way"

Sazerac Brands, LLC v. Peristyle, LLC, — F.3d —- , 2018 WL 2975995, Nos. 17-5933 & 17-5997 (6th Cir. Jun. 14, 2018)Filed 7 days after argument, which is interesting given that the panel creates a bit of a mess—essentially disagreeing with circuit precedent on use as a mark, but not going en banc on it. This is going to be a pain for district courts; I take it that the best response for them will be to apply un-overruled precedent and leave it to the court of appeals to go en banc if they’re so unhappy with current precedent.Colonel Edmund Haynes Taylor, Jr., “the most remarkable man to enter the whiskey industry during the post-Civil War years,” built the Old Taylor Distillery in 1887. Once the “most magnificent plant of its kind in Kentucky,” the distillery fell into disrepair after the Colonel’s death, and production ceased there in 1972. In 2014, Peristyle bought the property, renovated it, and eventually resumed…

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